Silence is Not Golden

In a recent decision by the Rhode Island Traffic Tribunal Appeals Panel, a motorist was found guilty of refusing to submit to a chemical breath test. Police typically ask motorists to take a breathalyzer test when they are suspected of driving while intoxicated (DUI). Rhode Island is an implied consent state, meaning by virtue of driving a motor vehicle in Rhode Island, a motorist has consented to submit to a breathalyzer test. A motorist can refuse the test and under Rhode Island law, the charge of refusal to submit to a chemical test is a civil violation. If a motorist is found to be in violation, he or she faces civil, not criminal penalties.

Pursuant to R.I.G.L 31-27-2.1 refusal is defined as:

Any person who operates a motor vehicle within this state shall be deemed to have given his or her consent to chemical tests of his or her breath, blood, and/or urine for the purpose of determining the chemical content of his or her body fluids or breath. No more than two (2) complete tests, one for the presence of intoxicating liquor and one for the presence of toluene or any controlled substance, as defined in § 21-28-1.02(7), shall be administered at the direction of a law enforcement officer having reasonable grounds to believe the person to have been driving a motor vehicle within this state while under the influence of intoxicating liquor, toluene, or any controlled substance, as defined in chapter 28 of title 21, or any combination of these.

The penalties for refusal include:

For the first violation a fine in the amount of two hundred dollars ($200) to five hundred dollars ($500) and shall order the person to perform ten (10) to sixty (60) hours of public community restitution. The person's driving license in this state shall be suspended for a period of six (6) months to one year. The traffic tribunal judge shall require attendance at a special course on driving while intoxicated or under the influence of a controlled substance and/or alcohol or drug treatment for the individual In addition to any other fines, a highway safety assessment of five hundred dollars ($500) shall be paid by any person found in violation of this section, the assessment to be deposited into the general fund. The assessment provided for by this subsection shall be collected from a violator before any other fines authorized by this section. In addition to any other fines and highway safety assessments, a two hundred dollar ($200) assessment shall be paid by any person found in violation of this section to support the department of health's chemical testing programs outlined in § 31-27-2 (4), which shall be deposited as general revenues, not restricted receipts.

In this particular case, the motorist never responded to the Police Officer's request that he submit to the chemical test. The Officer asked the motorist a few times to submit to the test and the motorist remained silent. The Court held that the refusal did not have to be through words, but could also be through actions. The motorist's silence was "a constructive, or conditional refusal," which the Court held "to have the same legal effect of an actual refusal."

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